BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claims of

RANDALL  R  LEPAK, Employe,

KEITH  M  KUTSKA, Employee, and

MICHAEL  L  PIASKOWSKI, Employe

Involving the account of

JAMES RIVER PAPER COMPANY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93400404GB

The employer filed a petition for review by the commission of an appeal tribunal decision which held that the employes were suspended but not for good cause connected with their work.

Based on the applicable records, law and evidence in this case, and having consulted with the administrative law judge concerning his impressions as to the credibility of the witnesses, the commission now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Keith Kutska, Randall Lepak, and Michael Piaskowski (hereafter, collectively, "claimants") were all production employes of James River Corporation (hereafter, "employer") in its Green Bay mill. Claimants were suspended without pay on December 7, 1992. The issue for decision is whether they were suspended for good cause connected with their work, within the meaning of section 108.04 (6), Stats.

This matter began with Kutska's attempt to steal an extension cord from the employer on November 10, 1992. Another employe, Thomas Monfils, learned that Kutska would attempt to take the extension cord, and Monfils telephoned the police department and informed them of this. Kutska did in fact attempt to steal the extension cord on November 10, 1992, and his attempt succeeded notwithstanding the tip Monfils provided because Kutska refused to open his bag when he was confronted by a guard as he was leaving the workplace on that day. On November 11, however, Kutska was given a five-day suspension for refusing to allow the guard to inspect his bag. At this time the employer notified Kutska that an informant had told the police of the intended theft.

Kutska returned to work following his suspension on November 16. He had conversations with other employes about the information that someone had notified police about his planned theft, and he decided to find out who had contacted the police. He was able to obtain a copy of a tape recording of Monfils' call to the police department, and he recognized Monfils' voice.

On the day he obtained the copy of the tape, Kutska played it for the president of his union, Marlin Charles. He also contacted Piaskowski and Lepak by telephone, played the tape to each of them over the phone, and asked each of them to be witnesses in a planned confrontation with Monfils at work in which an attempt would be made to get Monfils to admit that it was his voice on the tape. Both Piaskowski and Lepak agreed to participate in this confrontation.

On the following morning, November 21, 1992, Kutska went to work at approximately 4:50 a.m. He brought the tape with him. Shortly after 5 a.m. he spoke to union president Charles about the matter and played the tape aloud. His conversation with Charles and the playing of the tape were overheard by five or six other employes at that time. Kutska then left the tape and the tape recorder with Charles, and returned to his work station for approximately 15 minutes before he returned and picked them up. In the interim, Charles had made a copy of the tape.

A significant number of workers in the plant had heard the tape by that morning and knew that an effort was going to be made to obtain an admission from Monfils that it was his voice on the tape. Quite a bit of interest had been generated in the tape, there was considerable discussion and agitation among the work force in the mill even before the meeting which eventually occurred. Thus, when Kutska called Lepak at shortly after 7 a.m. to ask him to come over so they could confront Monfils, the other employes on Lepak's crew told him that they knew where he was going and that he should just go. Kutska was aware that other workers were shocked that another worker would be an informant and he knew that people were not going to be happy about what Monfils had done. He believed that the incident would create an atmosphere wherein the other workers would not trust Monfils. He knew that all the workers were curious, and he wanted to create a public record.

Shortly after 7 a.m. on the morning of November 21, 1992, Lepak, Piaskowski and Kutska confronted Monfils inside the control room for one of the plant's paper machines. Kutska was standing between Monfils and the door. Kutska played the tape, and repeatedly asked Monfils if it was his voice on the tape. In the course of trying to get Monfils to answer, Kutska told Monfils that he "expected" or "deserved" an answer. Eventually, Monfils said that it was his voice. Following this, all three claimants verbally criticized Monfils. Kutska called Monfils' action "malicious." Piaskowski said, "God, I can't believe you'd do that" and "I just don't fucking believe you did that." Lepak asked Monfils how he could have done such a thing and told him that what he did was "chicken shit," and he also told Monfils that Kutska's job was "the guy's future, everything he owns, his life."

Kutska, Lepak and Piaskowski left the control room after their confrontation with Monfils. At around 7:30 a.m., Kutska played the tape again for some other employes. He told other workers in the area that he had obtained a "confession" from Monfils. Kutska made a statement to another employe which implicitly encouraged him to go and harass or intimidate Monfils. Lepak also told a number of other employes that Monfils had stated that it was his voice on the tape.

By 8 a.m. on the morning of November 21, 1992, Monfils was missing. By shortly after noon, the police had been contacted and were investigating. In the course of interviews with the claimants on November 21 after Monfils disappeared, the employer learned of the facts described above.

Monfils' body was found at approximately 9 p.m. on November 22, 1992 in a machine not far from the room where the claimants had confronted him. He had died one and one-half days before his body was discovered. The police considered the circumstances of the death to be suspicious.

The claimants were taken off the work schedule on November 25, 1992, but kept on pay status. On December 7, they were each suspended without pay.

The police investigation which had begun even before the discovery of Monfils' body, had continued thereafter. Both the police and the employer's own legal staff advised the employer's management to be very careful in any statements it made concerning the matter in order to avoid jeopardizing the police investigation. Because of this, when the employer suspended the claimants on December 7, it gave as its reason that it had "serious concerns about their participation in the unauthorized meeting on Saturday morning, November 21, 1992, with Tom Monfils." The Employer did not cite the harassing atmosphere created by the claimants' conduct as a reason for their suspension at the time it informed than of the suspension on December 7, because of the pendency of the police investigation and the advice it had received to be very careful in its public statements. Notwithstanding what the employer said to the claimants at the time, the actual motivation of the employer for the suspensions of claimants was concern about the entire course of conduct the claimants had engaged in in connection with the Monfils' matter.

Kutska knew that he had in fact stolen from the employer. There is no evidence that he ever told Lepak and Piaskowski that he had not done so, and there is no evidence that Lepak and Piaskowski ever asked Kutska if he had done so. The commission does not find credible, the claim by Lepak that he was acting under the premise that the accusation made by Monfils was false. Lepak and Piaskowski were at very least acting with knowing disregard for the question of whether the charge of theft was true, when they confronted Monfils and challenged him for having made that charge.

Kutska, Piaskowski and Lepak either knew, or should in the exercise of normal judgment have realized, that their confrontation of Monfils in this fashion could tend to deter him and others from disclosing future attempts to steal from the employer, a result that would be contrary to the employer's interests. Kutska, Piaskowski and Lepak also either knew, or should in the exercise of normal judgment have realized, that their confrontation with Monfils and their other actions tending to make the confrontation and its subject a matter of common knowledge in the plant, would tend to create ill will and discord between employes, a condition which is also clearly not in the interests of the employer. Because Kutska knew that Monfils' charge had been true, and because Lepak and Piaskowski were at best acting with knowing disregard for the question of whether the charge had been true, their actions tending to deter future reporting of actual thefts and to create ill will and discord in the plant, were irresponsible.

The entire course of conduct of each of the claimants in connection with the Monfils' matter, as described above and as known to the employer, involved at the very least poor judgment on the part of each of the claimants. That conduct was the cause in fact of the employer's decision to suspend the employes. It was therefore good cause for suspension.

The commission therefore finds that the claimants were suspended for good cause connected with their work, within the meaning of section 108.04 (6), Stats. in week 50 of 1992.

The commission further finds that each claimant was paid benefits in the amount of $240 for each of weeks 50 of 1992 through 1 of 1993, in the total amount of $960 each, for which they were not eligible and to which they were not entitled, within the meaning of section 108.03 (1), Stats., and that pursuant to section 108.22 (8)(a), Stats., each claimant is required to repay the sum of $960 to the Unemployment Reserve Fund.

DECISION

The decision of the appeal tribunal is reversed. Accordingly, the claimants are ineligible for benefits in weeks 50 of 1992 through 1 of 1993. Each claimant is required to repay the sum of $960 to the Unemployment Reserve Fund.

Dated and mailed December 16, 1993
110 : CD5655  MC 665.01  MC 676

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

In his consultation with the commission, the administrative law judge indicated that he believed the testimony given by the employer's witness concerning the employer's reason for suspending the claimants. The ALJ concluded as a matter of law, however, that the employer was in some way "bound" by the reason it gave for the suspensions at the time it imposed them. Thus, he based his decision on whether the employer proved that reason, which he took to be simply that the "meeting" with Monfils was "unauthorized." The commission respectfully disagrees.

Section 108.04 (6), Stats., is constructed in the same fashion as sec. 108.04 (5), Stats., in that both provide for disqualification if a claimant is suspended or discharged "for" either good cause or misconduct. Based on this parallel construction, the commission concludes that the legislature had the same intent in each section, as to what reason "for" suspension or discharge was to be measured against the statutory test. The commission has consistently held that it is the employer's actual reason for discharge that must be measured against the "misconduct" standard, not any other reason which may have been asserted at the time but which is determined not to have been the actual reason. See, Childs v. Madison Psychiatric Associates Ltd., LIRC, May 16, 1990, Brower v. Cal-Inland Inc., LIRC, May 25, 1990; Somers v. Akroline Machines of Wisconsin Inc., LIRC, June 7, 1990.  Circuit courts reviewing the commission's decisions have consistently endorsed this approach. See, DeBardeleben v. DILHR and Tucker, Price Co. Cir. Ct. August 11, 1980 ("It is evident that statutory misconduct encompasses only those actions which constitute actual reasons for the discharge");  Copps Corporation v. Tourville and LIRC, Portage Co. Cir. Ct., June 26, 1990. ("The determination whether or not this discharge was for misconduct connected to the employment must be based upon the actual reasons for which the discharge occurred");  see also Majestic of Lake Geneva, Inc. v. State and Shackett, Walworth Co. Cir. Ct., June 21, 1993, and Dor Lee, Inc. v. LIRC and Ceason, La Crosse Co Cir. Ct., June 17, 1993.

Certainly, if an employer asserts one reason for a discharge or a suspension at the time, and then subsequently asserts a different reason, this can be considered by the trier of fact as evidence that the subsequently asserted reason is not the actual reason. However, this is not a matter of treating the employer as legally bound by the earlier reason; it is a matter of making a finding of fact, on the basis of conflicting evidence, that the earlier reason was the actual reason. The trier of fact may also conclude, however, that the subsequently asserted reason was the actual reason. The question of what motivates a party in taking a particular action, and thus of what their intent is in taking that action, is a question of fact, Holy Name School v. DILHR, 109 Wis. 2d 381, 386-87, 326 N.W.2d 121 (App. 1982), and the question of whether conduct by an employe was or was not the actual reason for an employer's decision to discharge or suspend that Employe, is thus also a question of fact. See, Conlin Flooring v. LIRC and Karsten, Dane Co. Cir. Ct., May 18, 1990; Dor Lee v. LIRC , supra; Majestic of Lake Geneva v. State, supra.

The commission must therefore consider the actual reason that the employer suspended the claimants.

The commission has carefully considered all of the evidence in this matter as well as the information provided by the administrative law judge in his consultation with the commission, and having done so it disagrees with the view that the employer suspended these claimants simply because the "meeting" they had on the morning of November 21, 1992, was not properly "authorized" according to some procedure. While references to the meeting having been unauthorized were included in the written explanations of the suspensions, the employer persuasively explained why its explanation of the reasons for the suspensions was necessarily incomplete when given. Looking to the actual reasons as opposed to the stated reasons, the commission is persuaded that the claimants were suspended because of the whole course of conduct they engaged in in connection with their confrontation of Monfils, including not only the confrontation itself but also their other actions contributing to the atmosphere of hostility towards Monfils which arose in connection with the matter. (1)

Turning to the issue of whether the conduct which was the actual motivating factor in the employer's decision to suspend the claimants was "good cause" for suspension, the commission notes that the unemployment compensation act has provided for a partial disqualification from benefit eligibility for employes suspended for "good cause connected with their employment" since 1939. During that time, the commission has consistently held that "good cause" for suspension does not require the level of culpability necessary for a finding of misconduct under section 108.04 (5), Stats. "Good cause" can be found even in the case of a single instance of poor judgment and even absent intent to cause disruption or otherwise interfere with the employer's interests. Decision 68-A3026 (C), 1976 Wis. Unemployment Compensation Decision Digest; Galica v. Oshkosh Truck Corp., LIRC, September 12, 1986; Brown v. Town of La Pointe-Ashland, LIRC, August 28, 1989; Smith v. Ashland Oil Company , LIRC, December 28, 1989; Mitchell v. Milwaukee Public Schools, LIRC, November 23, 1990; Thorpe v. County of Fond du Lac, LIRC, February 8, 1991. For the reasons described above in its findings, the commission believes that each of the claimants in this matter was at very least guilty of poor judgment in the course of conduct for which the employer suspended them. Whether they were guilty of anything beyond this, is an issue which the commission does not need to reach in order to determine the applicability of the "good cause" standard herein, and for that reason such question is not addressed.

cc: 
James Yusko
James River Paper Corporation

Attorney Robert Duffy
Quarles & Brady

Attorney Robert Lubinski

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Footnotes:

(1)( Back ) Apart from the fact that the suspension was imposed for claimants' whole course of conduct of which the meeting was but a part, the question of whether the meeting was "authorized" would not be determinative in any event. The unemployment compensation statute is not a "little" labor relations law, and the critical question in determining the eligibility of an employe whose employment was suspended by his employer for disciplinary reasons, is whether the employe's conduct met the statutory standard regardless of what construction was put on the rules or the reasonableness of those rules. It is unnecessary for the commission to construe work rules and collective bargaining agreement provisions in the fashion of an arbitrator or a court deciding a reinstatement case. Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502, 512 (1964). Eligibility for unemployment compensation benefits cannot be made dependent on the result of negotiations between the employer and the employe or his bargaining agent. Roberts v. Industrial Comm., 2 Wis. 2 399, 403 (1957). It is this entire course of conduct that must therefore be measured against the "good cause" standard in section 108.04 (6), Stats.